Labor Relations Insight by Phil Wilson   

  

What’s happening with voter turnout in NLRB elections?

This week Bloomberg News reported that union win rates in NLRB elections have remained steady over the course of this year (pre- and post-Covid), meaning that mail-ballot elections haven’t helped unions as much as employers may have first feared. Our data from LRI RightNow agrees – unions won 67.7% of elections certified after the NLRB re-opened elections on April 4. Unions won 68.5% of elections certified this year prior to the shutdown.[1]

That wasn’t what popped out to me in the story, however. What caught my attention was the voter turnout numbers. The article stated that voter turnout in mail ballot elections this year was just over 42%. That’s shockingly low. The article also noted that average turnout over the prior five years was 47%. The article stated: 

"Voter turnout was 42.1% for both mail-ballot and in-person elections, the analysis of 2020 election results showed. That represents a dip from the 47% turnout for union elections from 2015 to 2019. 

 

'Voter turnout has been unusually low so far this year, but that’s understandable, given the logistical challenges brought on by the pandemic,” Bloomberg Law labor and employment analyst Robert Combs said. “What’s surprising is that these challenges haven’t affected one method of voting more than another, in terms of either participation by voters or the outcome of the elections.' ” 

 

I scratched my head for a while on this one. After all, we handle nearly 100 elections each year and I’ve been doing this work for longer than I want to admit. I can't remember an election where turnout was anywhere near as low as 40%. I know low turnout does occasionally happen. But the political science major in me has always loved how NLRB elections represent what elections in the US should be like. Every vote matters, and the turnout is usually quite high especially when voters fully understand how the election works.

Even with the mail ballot elections we’ve worked I’ve been surprised at voter turnout. I finally concluded something must be wrong with the data.

 

In our database we show voter turnout numbers significantly higher than 42% and 47% mentioned in the article. We show a total of 254 elections certified prior to the re-opening on April 6. In those elections there were 12,085 eligible voters and a total of 9,470 votes cast, which is turnout of 78.3%. 

 

After elections re-opened (and virtually all of these were mail ballot elections) there've been 475 elections certified, with 31,368 voters eligible and 21,159 votes cast, which is turnout of 67.4%. 

 

Finally, from 2015-2019 we show 7,509 elections with 465,529 eligible voters, with 361,139 total votes cast, or a turnout of 77.6%. That’s basically the same as the pre-Covid elections certified this year.

Which numbers are right? I’m still investigating, but I’m pretty sure there was a mistake in the Bloomberg article. It looks like they are relying on reports from the NLRB, so it could be a mistake made in those reports. Or I also considered if they only counted union votes instead of all votes cast. I’ll let you know what I find out.

There is a bigger lesson here. The political science major in me also knows better than to make any political predictions for the upcoming elections. However, I think it is safe to say that there will be a LOT of statistics thrown around about union elections over the next few years. These will be used to justify or dispute the need for major labor law reform.

Just like in the world at large, there will be a fair amount of “fake news” about what happens in NLRB elections. That’s why it is more important than ever for practitioners to be careful about taking what they read or hear at face value. And that includes this article – maybe I’ve made a mistake. And rest assured that if I have, I’ll let you know. 

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[1] Our numbers differ slightly from the election win percentages in the Bloomberg article. This could be for any number of reasons. We look at the date an election is certified, but they may be looking at the date the election is held. We included all elections, but they may only be looking at RC elections. And with so many elections in the database there could be a mistake in the records. But our numbers are usually very close. 

 

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Union Bailout Update

Social media policy received additional clarification when the National Labor Relations Board (NLRB) overruled an administrative law judge (ALJ) in Bemis Co., Inc. In the decision, the board indicated its willingness to look at a social media policy as a whole, rather than nitpicking individual sections, to decide if the rule could be construed by a reasonable employee to repress Section 7 activities.

In General Motors LLC and Charles Robinson, the board separate egregious behavior from protected concerted activity. No longer will an employee be shielded from discipline during otherwise protected concerted activity if the employee engages in “profanity-laced speech, as well as racial, ethnic or sexist slurs, or other abusive conduct toward or about management or other employees.”

In Velox Express, the board determined that the misclassification of workers as independent contractors does not constitute a violation of Section 8(a)(1) of the NLRA. An ALJ had ruled that because Velox had misclassified a group of drivers, it had also violated their Section 7 rights. In the article at DLAPiper.com, the authors explain:

“The Board majority held that an employer’s communication to its workers of its opinion that they are independent contractors does not, standing alone, violate the NLRA if that opinion turns out to be mistaken.  The Board reasoned that such communication does not inherently threaten those employees with termination or other adverse action if they engage in activities protected by the NLRA, nor does it communicate that it would be futile for them to engage in such activities…

“To impose liability for an employer’s mistaken belief that an independent contractor classification is proper, the Board reasoned, would unduly chill the creation of independent contractor relationships, which would be contrary to the Congressional intent to preserve independent contractor relationships as reflected by the NLRA.”

The UAW corruption scandal has been headline news for some time. The Department of Labor is proposing new rules designed to hold larger union organizations to a higher standard of scrutiny. According to the proposal, unions with annual receipts of $8 million or more would have to submit a new version of the financial reporting form (the LM-2), called a long-form LM-2, and designated LM-2 LF.  The new disclosure form would require labor organizations to identify any officers or employees who were paid $10,000 or more by the reporting organization and who also received $10,000 or more as an officer or employee of another labor organization in gross salaries, allowances, and other direct and indirect disbursements during the reporting period. The comment period will end around the end of November.

The deadline to comment on the DOL proposed rule with respect to Independent Contractor status is only a few days away. Under the proposed rule, the DOL has retained but modified the current test, focusing on two core factors and identifying three other factors that may serve as additional guideposts. To review the test and the explanation of the factors, this article provides the details. Comments on the proposed rule must be submitted by October 26, 2020, and can be submitted electronically via the Federal Register website.

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Laboring Toward 2020

By next month’s issue of INK, we will hopefully know what the next administration will look like, for both the White House and the Senate.  If Joe Biden takes the White House and the Senate flips, huge changes will be on the way for labor law. If you’ve been following the news and reviewing Biden’s labor plan, you know that he is reaching even beyond the ProACT to benefit Big Labor. If the tide shifts in this fashion, as soon as the vote tally is certified, be on the lookout for opportunities to hear from us on what this will mean for employers.

Big Labor has upped their game, especially in key states of Wisconsin, Michigan, Pennsylvania, Florida, and Minnesota, where Steve Rosenthal, a retired ALF-CIO political director, has focused on targeting retired or ex-union members. This Union2020 effort claims to have moved the target audience from a polling margin of 59/24 (Biden over Trump) to 73/21 from last December to mid-September, using mail, email and social media efforts. These last few weeks will have included additional contact via phone.

Meanwhile, the SEIU has run a scam in New Hampshire, texting many Granite Staters that they would receive absentee ballots, and informing them how to complete and submit them. State Attorney General Gordon MacDonald claims the outreach has caused confusion among these voters, as many of them never requested absentee ballots or had already submitted them, or were planning to vote in person.

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Covid-19

Even though the NLRB has provided guidance for safely conducting in-person voting for union representation elections, most regional directors and the board itself have been ruling in favor of mail ballot elections in most, if not all, cases where the issue has been raised by the employer.

Labor unions and environmental groups joined together to sue the federal government, claiming a failure to provide adequate reusable respirators, N95 masks, gloves and other personal protective equipment (PPE) to essential workers amid the COVID-19 pandemic. Among the labor organizations involved are the AFL-CIO, United Steelworkers, Service Employees International Union, American Federation of Teachers & Amalgamated Transit Union.

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Tech/Media Unions

Journalists at the Dallas Morning News and Al Día voted to organize with the Communication Workers of America this month, making them the most recent in the growing list of media organizations who are now required to bargain with third parties over workplace matters.

Scott Brister, mastermind of our LRIRightNow database libraries and our in-house IT specialist, recently presided over an LRI employee retirement ceremony. It took us hours to get back to any productive work...!

Mac X. Serve, a faithful, hard-working part of the LRI family, retires today with the gratitude of all of us here and those he served so well over his 14-year tenure hosting the LRI Labor Libraries.

Scott Brister, who has worked alongside Mac X. ever since he was plugged into our workforce, recalls fondly the early days when Mac X. started (up).

"I remember his first day. So anxious to start serving. We couldn't feed information to him fast enough, he was that eager," said Brister. "He said he had felt boxed-in before coming to work at LRI. Since then he's been such a stalwart guy—hardly missing a day in close to 15 years. I don't know how he did it, frankly, but he definitely served us well."

Mac X. and Brister had their difficult moments, though. There were times Mac X. was reticent to try new things.

"He didn't like changes in operating systems, so it was difficult to convince him to update his methods. And he could be a bit of a blowhard, but when you're going full speed 24/7 for that long, you need something to keep you cool. I mean, it was as if he was always churning at 5400 RPM. Things are definitely going to be a lot quieter around here".

Brister's admiration for his long-time work partner is evident in other things. "Sure, he's hard on the outside, but inside he's soft—where it's needed. And what a great sense of humor. I never get tired of his favorite joke:

11000101 0010010? 10011101!

"So funny!" chortled Brister.

In the end, however, it was his inability to understand today's more demanding security needs that finally made Mac X. realize it was time to ⌘-Q and shut it down. "Things kinda passed him by," Brister lamented. "But nothing will outweigh the steadfast, servant attitude of Mac X. I'm going to miss him."

Mac X. is uncertain how he will spend his retirement. He loves to read and write and read and write and read and write, but isn't sure if he'll be able to find a suitable outlet to make that happen.

We all wish him Godspeedtest.

A retirement celebration is scheduled for 10 a.m. in Mac X.'s office. Join us if you like as we tip our glasses to Mac X. and spill coffee on his keyboard one last time.

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Union Corruption

On October 1, James Cahill and 11 other officials of the New York State Building and Construction Trades Council were indicted for their part in over $100,000 in bribes from nonunion contractors. By engaging in the sort of pay-for-play, these union leaders essentially willfully neglected their fiduciary duties; and thus, deprived members of the services for which they have paid (via dues).

This month also saw former Health Services Union boss, Kathy Jackson, plead guilty to misappropriating approximately $68,000 in union funds. The same goes for former UAW president, Dennis Williams, who entered a guilty plea for engaging in the embezzling of hundreds of thousands of dollars in union funds.

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Union Organizing

Union organizing attempts continue to shift from traditional trade and labor industries to service, white collar, and tech. This month, we saw it play out at a coffee shop in Philly, with an influencer on Instagram, and amongst foster parents in Massachusetts. Follow the links to learn more.

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Gig Economy

Uber, Lyft, and other ride-sharing companies continue to take front stage in the gig economy.

The Seattle City Council has backed a new pay formula initiative that would require Uber and Lyft to take into account its drivers expenses and downtime (waiting for passengers) into its pay structure.

The 9th Circuit Court of Appeals ruled against a group of Massachusetts Uber drivers seeking exemption status from the Federal Arbitration Act. The petitioner argued that because he picks up and drops off passengers from the airport who engage in interstate commerce, that he too engages in interstate commerce, and thus should qualify for FAA exemption. Had he received his exemption status, it would set a precedent that Uber drivers who work the airport may not be required to adhere to the arbitration agreement they signed with the company.

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Healthcare

In the last month, there have been two NLRB rulings of note in the healthcare sphere.

The first is that the NLRB was actually wrong when it ordered Crozer-Keystone Health System to disclose to its union their entire sale agreement with Prospect Medical Holdings. The 3rd Circuit Court of Appeals agreed with the NLRB that the company owed the union parts of its agreement, but not the agreement in its entirety.

The second ruling, made by the NLRB, is that Holy Cross Hospital in Silver Spring, MD, violated labor law by engaging in anti-union conduct during a 2016 union organizing campaign with the National Nurses United. More details here.

Healthcare strikes continue across the country. The two most notable ones in October so far have included workers at Allina Health in Minnesota and nurses at Alameda Health Systems in Northern California. Both groups of workers are represented by the Service Employees International Union.

Two nursing home chains in Michigan, Ciena and Villa, reached a tentative agreement just in time to avoid a strike by an expected 1,000 workers. And lastly, nurses at the University of Illinois Hospital and clinics also reached a tentative agreement after a week-long strike last month.

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LRI Scoreboard

The DOL is behind on data entry, so the Scoreboard will be sent at a later date

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Sticky Fingers

Current charges or sentences of embezzling union officials:

• Michael Oldham – AFGE: $39,000
• Yvette Luster – NPMHU: $184,138
• Edward Davis, Jr. – BLET: $61,386

http://nlpc.org/index.php?q=union-corruption-update